With President Donald Trump having refused to wholeheartedly state he will accept the election results, his Supreme Court nominee Amy Coney Barrett’s thoughts on dealing with such a situation could prove crucial within the near future.
Trump has said he will not automatically accept the outcome having cited, without clear evidence, a potential for widespread fraud due to the increased use of universal mail-in voting.
He has also been questioned on his stance over the potential transfer of power.
A dispute to the outcome could tee-up a Supreme Court battle, with Trump having suggested it is a necessity to have nine justices on the court in order to facilitate a clear decision being made in such a situation.
The case may be somewhat similar to that of Bush v. Gore in 2000—when Supreme Court Justices voted to overturn a Florida Supreme Court decision and end recounts of ballots in the state after some were contested. This had the effect of upholding the decision which gave the state to George W. Bush and, with its Electoral College seats, the presidency itself.
In a previous role working for law firm Baker Botts L.L.P., which worked for Bush, Barrett provided “research and briefing assistance” in the case while it was in the Florida courts before it headed to the Supreme Court, she told the Senate Judiciary Committee in a questionnaire. This work she said was conducted in Florida “for about a week at the outset of the litigation.”
Given the prospect of a similar case happening in the near future, Barrett’s views on Bush v. Gore could prove a worthy line of questioning for Democrats in her confirmation hearings this week.
“It’s almost certain that Democrats will inquire into Barrett’s opinion on Bush v. Gore—not only whether she thought the Court should have gotten involved and its judicial reasoning for the outcome, but also whether she would recuse herself should a similar case arise this year,” Thomas Gift, an associate professor of political science and founding director of the Centre on U.S. Politics at University College London, told Newsweek.
“The fact that Trump has insisted that one of the reasons for confirming Barrett before November 3 is that she could cast a deciding vote on a case involving a contested election outcome makes figuring out her thoughts a top priority for Democrats.”
However, he suggested the potential for a case similar to Bush v. Gore coming to the Supreme Court could give her reasoning to not answer queries on it.
“At the same time, precisely because it’s not totally far-fetched that a Bush v. Gore 2.0-like case could come before the Court in 2020, it’s likely that Barrett won’t give unequivocal answers to the questions so as not to be seen as pre-judging or showing partiality,” he added.
Asked whether Democrats would likely bring up Bush v. Gore, Democratic strategist and lawyer Jennifer Holdsworth told Newsweek: “Yes I think it’s vital.”
Continuing on this point, she said it would be unlikely any answer could derail Barrett’s confirmation—but that it remained important for her views to be known.
“The important point that is lost when discussing Bush v. Gore was that the precedent is to STOP counting votes. So Stare Decisis cuts both ways for democrats here unfortunately. She should be asked if she intends to recuse herself on any election cases that pertain to Trump,” Holdsworth said.
“While I don’t think her transparency or hypocrisy will ultimately prevent her confirmation, as it’s fait accompli at this point, it should be laid bare for the world to see.”
Despite these suggestions such a line of questioning should be undertaken, Richard Johnson, a lecturer in U.S. politics and policy at Queen Mary University of London, told Newsweek he is unclear what insight Democrats would get from this.
“I don’t know how revealing a question on Bush v Gore would be,” he said, suggesting it was a “rather technical matter” to answer queries over, due to the dual points of whether Florida’s recounting method violated the equal protection clause and whether there were time for a different system to be in place before Electoral College electors were required to be appointed.
“Even some of the liberals accepted that the recount system Florida was using was a mess (7-2), but they disagreed on ideological lines about whether a new system could be devised in time (5-4),” he said, with the court therefore ruling the recount stop and the previous result of a Bush win held.
“I’m not sure there’s a really a gotcha question one could divine from that,” he said.
Newsweek has contacted the White House for comment on the prospect of a disputed election case and Barrett’s potential stance on such a matter.
In her opening statement on Monday, Barrett insisted that she believes the law must be applied as it is written.
“A judge must apply the law as written, not as she wishes it were,” she said.
Democrats questioned how she might approach health care, given questions over the Affordable Care Act, on the opening day of the hearings.
While the proximity of the hearings to Election Day look to lead to some politicization of questions and answers, Democrats have been urged to approach certain lines of inquiry with caution or perhaps face them backfiring.